Dwyer v. Ford Motor Co.

Weintbaub, C. J.

(concurring). We granted certification in the hope that we could give helpful guidance in this troublesome area. I fear we have not succeeded.

The law is clear enough. The “accident” is the unexpected injury rather than some external event, and hence compensation must be awarded if the work in fact caused or materially aggravated ot accelerated disability or death, whether the work effort was ordinary or extraordinary, usual or unusual.

The problem is one of proof. At one time our cases required evidence of unusual stress or strain. That requirement perhaps stemmed from the concept that the “accident” had to be some event other than the unexpected injury. It could, however, have been born of the thought that even though the injury is the accident, yet when one deals with underlying diseases of a progressive nature, an unusual stress or strain should be required simply as a badge of verity, for want of adequate medical criteria to establish or deny a connection between usual effort and the disability or death. At any rate, we rejected the unusual stress or strain doctrine in Ciuba v. Irvington Varnish & Insulator Co., 27 N. J. 127 (1958), trusting the medical profession could shed the light needed.

I gather that in heart matters there are conflicting theses within the medical profession as to (1) whether stress or strain can precipitate certain disabling injuries or worsen them, and (2) what criteria must be met to establish medically a causal connection when it is agreed that stress and strain can be a factor. Hence we do not have the conventional situation in which the basic medical thesis is undisputed, doctors merely disagreeing as to whether on the facts of a case a causal connection is probable. When there are *514 contending schools of medical opinion as to whether there can be a connection between stress or strain and the onset or aggravation of some cardiac injury, a court cannot reach the facts of the particular ease unless it first accepts the view that a connection is medically possible, and, of course, to do so necessarily involves a choice between incompatible medical doctrines.

The question then arises, what court should make that choice? One approach is that the highest state court should decide between the contending medical theories and make its choice binding upon all judges, whether they agree or not.

The other approach would be to leave it with each trial judge to make his own selection of a medical thesis. This seems plausible since analytically the issue is factual in nature. Yet this oversimplifies the problem.

Eor one thing, the fate of the litigants would then depend upon the identity of the judge who happens to hear the case. It would be idle to say that each litigant has a fresh chance to prevail before a given judge, for the judge could hardly accept antithetical theories in successive cases merely on the basis of the relative persuasiveness or credibility of the particular experts who happen to appear. Thus cases would virtually be decided by the very act of assignment for trial.

Still upon that approach, what would be the duty of the county court judge who must decide the case de novof And what would be the issue before the Appellate Division? Should each appellate judge make his own choice of medical doctrine and reverse because it differs with the one the trial judge made? If so, the views of each part of the Appellate Division would then be decisive as to cases which chance to reach it, unless we should accept the existence of disagreements upon medical theory as a basis for certification, in which event our view on that factual question would quite effectively become “law.”

And if we are to resolve conflicts of such depth among medical experts, we would have to know much more than *515 appears in the usual record. Ordinarily the expert states his thesis and goes on from there, without expounding the scientific bases for the doctrine to which he adheres. Moreover, we obtain only the views of the witnesses who happen to testify in the cause. This is hardly a sound way to establish a binding scientific doctrine.

I am not sure the problem I have discussed exists in the present case. The record is not revealing either way.

Mr. Dwyer was in the throes of a disabling episode when he went to work and the issue is whether his work materially aggravated the illness and thus contributed to his death. Both experts agreed that (1) Mr. Dwyer suffered a severe attack of coronary insufficiency on April 37 and the illness continued into April 39, when he returned to work, and (3) Mr. Dwyer should have been in bed, the better to combat the storm. Both further agreed that a prolonged attack of coronary insufficiency could produce the very fatal course which decedent experienced, and, I gather, both agreed that work effort can, but need not necessarily, worsen that illness. Respondent’s expert said in effect, as I understand it, that before a medical expert could find work effort did play a baneful role, it must appear that some specific effort was followed by some sign or symptom of injury, for otherwise the witness, however expert, would merely be guessing. Petitioner’s expert, on the other hand, believed “the cumulative effect of repeated exertion” was a major contributing factor in the death. In support, he referred to the evidence indicating that during the work day there was a general deterioration of the man’s condition. We are not informed, however, as to whether he found anything which specifically evidenced a worsening due to work rather than to the natural progress of the disease alone.

It may well be that the ultimate opinions of these experts hinged upon doctrinal differences with respect to minimum criteria necessary to show medically that a causal connection existed. Neither witness was interrogated along *516 those lines. Perhaps if it were developed that the profession is divided upon the subject and there were an extensive discourse upon the contending theories with the scientific support for them, I could make an informed choice. On the present record, I think I must start with the agreed proposition that the work effort could have played a part, and superimposing the day’s work upon the grievous illness, I get the feeling that decedent probably became the worse for it. Thus I concur in the result reached by the majority.

But I appreciate regretfully that my reaction to this factual complex can be of no help in another case. It is but a gross reaction rather than a demonstrable product of a step-by-step analysis. When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contribution scientific advances may offer.

This rough basis for decision is not a happy one. A process which leads to an all-or-nothing result in so murky an area is not truly just either to the individual litigants or to the larger interests in the industrial scene. It may well be that until the medical profession can give us dis-positive help, some arbitrary compromise would be the more tolerable course. This must be left to the other branches of government which alone can fashion a remedy of that quality.